States Rule

If you believe the courts offer the best route for getting rid of bans on same-sex marriage, then you should be saying “I-told-you-so” this week. In Boston on Thursday, a district court judge overturned part of the Defense of Marriage Act (DOMA), declaring unconstitutional its ban on federal recognition of same-sex marriages that are legal at the state level.

The case, Gill v. Office of Personnel Management, was brought by Gay and Lesbian Advocates and Defenders (GLAD), a Boston-based organization with a notably successful track record and a savvy, strategic approach. The plaintiffs, all gay or lesbian couples, were legally married in the state of Massachusetts but, because of DOMA, had been denied various benefits—joint tax filing, social security, health and life insurance for the spouses of federal employees—to which heterosexual couples are entitled. United States District Judge Joseph Tauro sided with the plaintiffs’ argument that DOMA violated the equal-protection clause of the constitution by creating two unequal classes of married couples.

Perhaps more important, though, Tauro set about neatly dismissing the major arguments in favor of legal bans on gay marriage. He wouldn’t have had to. When Congress passed DOMA in 1996, it offered its own reasons for defining marriage as between one man and one woman. The Obama Administration, in opting to defend a piece of legislation it says it disagrees with, declined to use any of those rationales. Instead, it stuck to one basic argument, namely that the Constitution allowed Congress to enact DOMA in order to maintain the status quo.

Tauro was unimpressed. Which status quo did the Justice Department lawyers mean? If they were talking about marriage itself, well, yes, heterosexual marriage was the status quo in 1996. But if they were talking about marriage law, the status quo there was for “the federal government to recognize for federal purposes, any marriage declared valid according to state law.” States ruled. The federal government had to recognize even a marriage that no other states would allow—like one uniting a fourteen-year-old boy and a thirteen-year-old girl, which was permitted nowhere but New Hampshire.

But Tauro, who is seventy-nine and was first appointed to the bench by Richard Nixon in 1972, took on the original rationales for DOMA as well, and saw little there to persuade him. That’s worth paying attention to, both because you might peg Tauro, based on his demographics, as somebody who’d be swayed by arguments for upholding tradition, and because these are the very same arguments still proffered by the opponents of same-sex marriage. (They were aired most recently in the San Francisco courtroom that was the site of the constitutional challenge to Proposition 8. A decision in that case is expected next month.)

The rationale offered for DOMA at the time was that Congress was trying to encourage responsible procreation and child-bearing, to bolster the institution of heterosexual marriage, and to defend traditional morality. Judge Tauro wasted no time dismissing these points, starting with the responsible child-bearing objection: “Since the enactment of DOMA,” he wrote, “a consensus has developed among the medical, psychological, and social welfare communities that children raised by gay and lesbian parents are just as likely to be well-adjusted as those raised by heterosexual parents.”

Besides, he wrote, “an interest in encouraging responsible procreation plainly cannot provide a rational basis upon which to exclude same-sex marriages from federal recognition because, as Justice Scalia pointed out in his dissent to Lawrence v. Texas, the ability to procreate is not now, nor has it ever been, a precondition to marriage in any state in the country.”

As for the argument that banning same-sex marriage would be a boon for heterosexual marriage, Tauro was dubious. “More generally, this court cannot discern a means by which the federal government’s denial of benefits to same-sex spouses might encourage homosexual people to marry members of the opposite sex.” And if the federal government’s aim was the broader one of making heterosexual marriage look more valuable or attractive, then it would have to do so by some other means than punishing same-sex couples who’d been legally married in the state where they lived.